The Punjab Cycle Rickshaws (Regulation of
Rickshaws) Act, 1976 (Punjab Act 41 of 1975), was designed to regulate the
issue of licenses to actual drivers of cycle rickshaws, plying within the
municipal areas of the State.

(a) Every rickshaw puller including every
petitioner, who has been a licensee within one year of the coming into force of
the Act shall be entitled to apply to the Municipal Commissioner for a
certificate or other document to the effect that he has been a licensee for
rickshaw pulling. [369 F] (b) The Municipal Commissioner will verify the
records and will grant the necessary certificate or other document within one
month from the date of the application. [369 G] (c) on receipt of the municipal
certificate the rickshaw puller will apply to the Credit Guarantee Corporation
of India (Small Loans) under the Guarantee Scheme of 1971 for advance of a loan
upto Rs. 900. [369 H-370 A] (d) The loan amount shall be repaid by the rickshaw
puller in 15 monthly installments. If there are delayed payments of installments
of loan, higher rate of interest will be recoverable. [370 F] (e) When the
rickshaw pullers during the agricultural season go to work in their fields,
they shall nominate other rickshaw pullers without employment to ply the
rickshaws during that season. The Municipal Commissioner, if satisfied that the
nomination made is bona fide will issue licence to such pullers or nominees of
the licensed rickshaw pullers, in the agricultural season. [370 H-371 A] B. (I)
Under the Constitutional system courts are havens of refuge for the toiler, not
the exploiter, for the weaker claimant of social justice, not the stronger
pretender who seeks to sustain the status quo ante by judicial writ in the name
of fundamental rights. - [367 E] 367 (2) No higher duty or more solemn
responsibility rests upon this Court A than to uphold every State measure that
translates into living law the preambular promise of social justice reiterated
in Article 38 of the Constitution.

[F] (3) The success of well-meant statutory
schemes depends on the symbiosis of legislative embargo on exploitative working
conditions and viable facilities or acceptable alternatives whereby shackles
are shaken off and self-ownership substituted. Judicial engineering to- wards
this goal is better social justice than dehumanised adjudication on the vires
of legislation. [H-368 A]

KRISHNA IYER, J.-The challenge in these writ
petitions compel s to remind ourselves that under our constitutional system
courts are havens of refuge for the toiler, not the exploiter, for the weaker
claimant of social justice, not the stronger pretender who seeks to sustain the
status quo ante by judicial writ in the name of fundamental right. No higher
duty or more solemn responsibility rests upon this court than to uphold every
State measure that translates into living law the preambular promise of social
justice reiterated in Article 38 of the Constitution. We might have been called
upon to examine from this angle of constitutionalised humanism, the vires of
the Punjab Cycle Rickshaws (Regulation of Rickshaws) Act, 1976 (Punjab Act 41
of 1975) (the Act for short), designed to deliver the tragic tribe of rickshaw
pullers, whose lot is sweat, toil, blood and tears, from the exploitative
clutches of cycle rickshaw owners by a statutory ban on non-owner rickshaw
drivers. But negative bans, without supportive schemes, can be a remedy
aggravating the malady. For, the hungry human animal, euphemistically called
rickshaw puller, loses, in the name of mercy, even the opportunity to slave and
live. So, the success of such well-meant statutory schemes depends on the
symbiosis of legislative embargo on exploitative working conditions and viable
facilities or acceptable alternatives whereby shackles are shaken off and 368
self-ownership substituted. Judicial engineering towards this goal is better
social justice than dehumanised adjudication on the vires of legislation. Court
and counsel agreed on this constructive approach and strove through several
adjournments, to mould a scheme of acquisition of cycle rickshaws by licensed
rickshaw pullers without financial hurdles, suretyship problems and, more than
all, that heartless enemy, at the implementation level of all progressive
projects best left unmentioned. Several adjournments, several formulae and
several modi fictions resulted in reaching a hopefully workable proposal. In
fairness to the State, we must mention that when the impugned legislation was
enacted Government had such a supportive financial arrangement and many
rickshaw-pullers had been bailed out of their economic bondage. Some hitch
somewhere prevented several desperate rickshaw drivers getting the benefit,
which drove them to this Court. Anyway, all is well that ends well and judicial
activism gets its highest bonus when its order wipes some tears from some eyes.
Here, the bench and the bar have that reward.

These prefatory observations explain why a
pronouncement of the validity of the Act is not called for, although prima
facie, we see no constitutional sin in the statute as now framed. We now
proceed to set out in our judgment the terms and conditions which will carry
with them the implications and obligations of undertakings to the court so far
as the parties to the case are concerned.

Counsel for the Slate assures us that the
Credit Guarantee Corporation of India (Small Loans) will also abide by the
court's direction although not a party formally. So also, the Punjab National
Bank which is the financing agency parties have agreed upon.

There is no dispute. that the purpose of the
statute is obviously benign as is manifest from the Statement of objects and
Reason which runs thus:

In order to eliminate the exploitation of
rickshaw pullers by the middlemen and for giving a fillip to the scheme of the
State Government for arranging interest- free loans for the actual pullers to
enable them to purchase their own rickshaws, it is considered necessary to
regulate the issue of licences in favour of the actual drivers of
cycle-rickshaws, plying within the municipal areas of the State.

Section 3 which clamps down the impugned ban
read thus:

3(1) Notwithstanding anything contained to
the contrary in the Punjab Municipal Act, 1911, or any rule or order or bye-law
made thereunder or any other law for the time being in force, no 369 Owner of a
cycle rickshaw shall be granted any licence in respect of his cycle rickshaw
nor his licence shall be renewed by any municipal authority after the
commencement of this Act unless the cycle rickshaw is to be plied by such owner
himself;

(2) Every licence in respect of a cycle
rickshaw granted or renewed prior to the commencement of this Act shall stand
revoked, on the expiry of a period of thirty days after such commencement if it
does not conform to the provisions of this Act.

The State was alive to the need for positive
rescue measures beyond blanket ban on licensing and so decided to provide
interest-free loans to actual rickshaw pliers so that they could acquire their
own rickshaws and free themselves from the coils of middlemen who preyed upon
the little earnings from the toils of the pullers. Luckily, the nationalised
banks collaborated in this socially oriented Scheme called the Credit Guarantee
Corporation of India (Small Loans) Guarantee Scheme, 1971. And the Credit
Corporation agreed to stand surety for the amounts to be advanced by banks to
rickshaw pliers. Certainly, the Union of Rickshaw Pliers-the petitioner-readily
accepted the conditions designed for their deliverance since they had nothing
to lose except their chains.

Thus, we have all the factors ready to
cooperate in effectuating the purpose of saving the rickshaw pullers and making
them owners. All that we have to do is to set out a self-working, specific scheme
which makes the statutory ban not a negative, self-defeating interdict, but a
positive economic manumission. All the counsel have played a role in the
dynamic process which has resulted in the judicial project we are giving effect
to.

Every rickshaw plier, including every
petitioner, who has been a licensee in the Amritsar or other municipality
within one year of the coming into force of the Act will be entitled to apply
to the Municipal Commissioner within one month from today for a certificate or other
document to the effect that he has been a licensee for rickshaw pulling within
the aforesaid period. The Municipal Commissioner will verify the records on
receipt of such application and will grant the necessary certificate or other
document within one month from the date of application. He shall not delay the
issuance of the certificate. He shall not be over-strict, but shall be liberal
in the exercise of the certificate issuing power. (Punctiliousness, especially
with the weaker sections, is the path to harassment, corruption, dilatoriness
and exasperation. Welfare measures often breed de-moralisation through
heartless legalism and this very case is, to some extent, an illustration). On
receipt of the municipal certificate, the rickshaw puller concerned 370 will
apply to the Credit Guarantee Corporation of India (Small Loans), under the
Guarantee Scheme of 1971, praying to the said Corporation that it stand
guarantee to the Punjab National Bank (or other schedule bank mutually agreed
upon) for advance of a loan up to Rs. 900 (and in special cases for a larger
sum if satisfied that the price of a cycle rickshaw is more than Rs. 900). The
Punjab National Bank (or other scheduled bank mutually chosen) will receive a
sum of Rs. SO by way of deposit towards the loan to be advanced to the
applicant. The rickshaw pliers shall make this initial deposit to be eligible
for the bank loan. The balance of the loan shall be guaranteed by the Credit
Guarantee Corporation of India (Small Loans) whereupon the concerned bank will
advance the sum needed for the purchase of a cycle rickshaw to the manufacturer
or vendor indicated by the applicant.

Thereupon, the applicant (rickshaw puller)
will take delivery of the cycle rickshaw and produce the voucher evidencing
purchase and delivery of the rickshaw and, if needed, produce the rickshaw for
physical verification by the bank's officials within one week of taking such
delivery. and thereafter whenever directed. He will also sign the necessary
forms and undertakings required by the bank so as to hypothecate the cycle
rickshaw in favour of the bank. So far as the payment of interest to the bank
is concerned, both sides agree that it will be governed by the Scheme for
advance to the cycle rickshaw pullers framed by the State Government. The bank
shall advance 95% by way of loan towards the purchase of the cycle rickshaw.
The sum of Rs. 50 to be deposited initially by the rickshaw puller is expected
to cover the remaining 5 % . The loan amount shall be repaid by the rickshaw
puller concerned in 15 monthly installments or in weekly or daily installments
so that by the end of each month 1/15th of the amount is cleared). If there are
delayed payments of installments of loans, higher rates of interest will be
recoverable from the loanee (the rickshaw pliers) as per the 1971 scheme. The
amount of interest, in case installments are paid duly, will be met by the
Government as an act of relief for the rickshaw pliers.

The rickshaw pliers shall, or purchase,
hypothecate the vehicles to the bank which advances the loan and this will be
an undertaking to the court.

The petitioner union will be permitted by the
Municipality to set up and run a workshop for repair and allied types of work
and a service station for the cycle- rickshaws. Sufficient space will be
allowed in suitable places for rickshaw stands and safe keeping of rickshaw
within the limitations of availability and subject to moderate charges.

A realistic understanding of the life-style
of rickshaw pliers in Amritsar indicates that during the agricultural season
many of them 371 go to work nominating other rickshaw pliers without employment
to A ply the rickshaws during that season. The Municipal Commissioner. if
satisfied that the nomination made is bona fide, will issue licences to such
surrogates or nominees of the licensed rickshaw pliers for the agricultural
season.

The bank which advances the loan and the
Credit Guarantee Corporation which guarantees the repayment will.

at all reasonable times, be entitled to have
physical verification of the vehicles. without interference with the occupation
of the rickshaw pliers.

If group insurance of rickshaws and of the
life of the rickshaw pliers is feasible, the Municipal Commissioner will work
out a scheme in this behalf in consultation with the unions in the field.
Likewise. any project whereby cycle rickshaws can be replaced by scooters by
stages, will also be considered so that the rickshaw pullers of today may
become scooter drivers of tomorrow owning the vehicles themselves. It is a notorious
fact that rickshaw pullers have an occupational hazard and suffer from
pulmonary tuberculosis and so, the State must be deeply concerned progressively
to replace rickshaw pulling with mechanical propulsion. It would appear that
short of scooters there are mechanised cycle rickshaws which are fairly
inexpensive and which are being experimented with. Such vehicles may be a boot
to the miserable who now torture themselves to keep body and soul together.
After all, the quality of life of the weakest in society is the true measure of
social justice.

The conditions and directions we have
incorporated in this judgment shall be implemented in its true spirit and
import by the State, the Municipal Corporation, and the Credit Guarantee
Corporation, the nationalised banks and the Union and its members.

We are happy to record our appreciation of
the role of counsel and of the parties in bringing about this solution.

The State by exercising its legislative power
alone, could not produce justice until this formula was hammered out. The Court
with its process of justice alone could not produce a viable project. But now,
justice and power have come together and, hopefully. we have fulfilled the
words of Blaise Pascal, "Justice without power is inefficient; power without
justice is tyranny. Justice and power must, therefore, be brought together, so
that whatever is just may be powerful, and whatever is powerful may be
just." 372 Until fresh licences are granted to the cycle-rickshaw pliers
under the scheme we have incorporated in the order the present petitioners will
be allowed to ply their cycle- rickshaws.

The writ petitions are disposed of on the
above lines.

PATHAK, J.-I agree with the entire scheme of
directions framed by my learned brother for the purpose of enabling the
rickshaw pliers to acquire and own cycle rickshaws including the financial
arrangements envisaged in the scheme, and also the making of provision for the
repairs and maintenance of the cycle rickshaws. I need add nothing more.